I.   Introduction

You may have never heard the word SLAPP before, except in the context of “to hit something with a flat object.”  In the context of a lawsuit, a SLAPP is a vicious tool used to intimidate someone and saddle them with litigation costs in an effort to force them to give up a valuable right.

More formally, a SLAPP—Strategic Lawsuit Against Public Participation—is a lawsuit that seeks to deter or punish citizens for exercising their right to free speech and petition.[1]  Generally, a SLAPP is a “meritless lawsuit filed primarily to chill the defendant’s exercise of First Amendment rights.”[2]

The distinguishing feature of a SLAPP is that the goal is not to win the lawsuit but to obtain an economic advantage over a party.[3]  Because the goal is to obtain economic advantage, a defendant’s traditional safeguards against meritless actions, e.g., lawsuits for malicious prosecution or requests for sanctions, are inadequate to contend with SLAPPs.[4]

Plaintiffs disguise SLAPPs by asserting various claims for relief against the defendants.  One of the favored causes of action is defamation.[5]  Another favored tool used to punish a person for asserting his or her right to petition is a lawsuit for malicious prosecution.[6]

Defendants who face a SLAPP lawsuit in California have a powerful weapon they can use to dispose of a SLAPP through a streamlined procedure referred to as an anti-SLAPP motion.

Many states have adopted anti-SLAPP legislation, but California’s anti-SLAPP statute has put California on the forefront of anti-SLAPP litigation.  In 2009, there were approximately 1727 reported anti-SLAPP filings nationwide.[7] Of those, 1,386—80%—of the cases were in the State of California.[8]

II.   Background

The Supreme Court has recognized that we have a profound national commitment to the free exchange of ideas, which is enshrined in the First Amendment.[9]  Courts often uses terms like “enshrined” to emphasize just how important our right to free speech is, especially to our political processes and institutions.  The case law governing our exercise of First Amendment rights is designed “so that protected speech is not discouraged.”[10]  For example, in the context of a malicious prosecution lawsuit, the California Supreme Court has created a very lenient standard for bringing a civil action—a petition protected by the First Amendment—because of “the important public policy of avoiding the chilling of novel or debatable legal claims.”[11]

To those ends, the California Legislature enacted Code of Civil Procedure section 425.16 (the “anti-SLAPP statute”) to provide a procedural remedy to dispose of lawsuits that are brought to chill the exercise of a party’s right to free speech and petition.[12]

The anti-SLAPP statute authorizes a “special motion to strike,” akin to a motion to dismiss, for the “prompt exposure, dismissal, and discouragement of [SLAPPs].”[13]  It “establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.”[14]

III.   Activities Protected by the Anti-SLAPP Statute.

California’s anti-SLAPP statute defines four broad categories of conduct that constitute an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.”[15]  Those four categories are the following:

  1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,; or
  4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

The first category encompasses all “petition-related” activities made in an official proceeding, such as statements or writings presented in legislative or executive proceedings, and filing or defending lawsuits.  The second category encompasses  statements or writings concerning an issue that is under consideration by an governmental body or in an official proceeding.  For example, writing an open letter regarding a new crime bill pending before Congress, protesting proposed new zoning laws, and the like.

The third category covers statements or writings made (1) in a public place and (2) about an issue that has public interest.  This category protects statements and writings that are about subjects that are not presently pending before a governmental body and are not made in any official proceeding.  The forth category is a catchall that protects any first-amendment related activity in connection with public issues or matters in the public interest.

IV.   Learn More: Download the FREE Info Brief.

For more information on anti-SLAPP motions, please download and read my FREE informational briefing on California’s anti-SLAPP law.  The info brief describes the anti-SLAPP special motion to strike, the elements to prevail in an anti-SLAPP motion, exceptions where the anti-SLAPP law does not apply, timing of anti-SLAPP motions, applicability in federal court, and more.

The info brief is not up on the firm website yet, so please send me an email request if you would like me to send you a copy.

[1] Wilcox v. Superior Court, 27 Cal. App. 4th 809 (1994).

[2] Bradburry v. Superior Court, 49 Cal. App. 4th 1108, 1113 (1996).

[3] Wilcox at 816.

[4] Id. at 817.

[5] Chavez v. Mendoza, 94 Cal. 4th 1083, 1087-1090 (2001).

[6] “By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.”  Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734-735 (2003) (fn. Omitted).

[8] Id.

[9] Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 685-86 (1989).

[10] Id.

[11] Sheldon Appel Co., v. Albert & Oliker, 47 Cal. 3d 765, 863 (1989).

[12] Rusheen v. Cohen, 37 Cal. 4th 1048, 1055-56 (2006) (citations omitted).

[13] United States ex rel Newsham v. Lockheed Missiles & Space Company, 190 F.3d 963, 971 (1999) (quoting Wilcox at 817).

[14] Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 278 (2006).

[15] Cal. Civ. Proc. Code § 425.16(e).